Child-Porn Plea Rested on Illegal Border Search

(CN) – Child pornography found on a cellphone is not admissible because the Border Patrol agents found it more than an hour after arresting a suspected smuggler at a checkpoint, the 9th Circuit ruled Thursday. Chad Camou and Ashley Lundy pulled into a checkpoint on Highway 86 in Westmorland, Calif., around 10:40 p.m. on Aug. 1, 2009. With Lundy allegedly failing to make eye contact, Border Patrol agents searched the truck and discovered undocumented immigrant Alejandro Martinez-Ramirez hiding on the floor behind the front seats. Under questioning by Border Patrol Agent Richard Walla, Lundy said that she and Camou had picked up Martinez-Ramirez in Calexico, Calif., from a woman called “Mother Teresa.” The pair had allegedly made eight smuggling trips a month for Mother Teresa for the last nine months. Looking for what he later described in a report as “known smuggling organizations and information related to the case,” Agent Walla searched Camou’s cellphone about one hour and 20 minutes after the arrests. That search proved unsuccessful but did bring up about 30 to 40 images depicting child pornography, according to the 9th Circuit’s recounting of events. Assistant U.S. Attorney John Weis at the El Centro Sector Prosecutions Office later declined to pursue alien-smuggling charges against Camou, but the FBI served a search warrant on the phone based on Agent Walla’s initial, warrantless search, and found “several hundred images of child pornography on the cell phone.” Indicted for possession of child of pornography in federal court in San Diego, Camou moved to suppress the images, alleging that Agent Walla’s warrantless search had violated the Fourth Amendment. U.S. District Judge Marilyn Huff denied the motion, and Camou entered a conditional guilty plea. While appealing the issue to the 9th Circuit, Camou was sentenced to 37 months in prison and five years of supervised release. In a unanimous reversal Thursday, a three-judge panel of the federal appeals court ordered the child pornography suppressed. Agent Walla’s warrantless search of the cellphone occurred too long after Camou’s arrest to be considered “incident to arrest,” the court found, citing one of the few exceptions to the general requirement that law enforcement officials must obtain a warrant to search a suspect’s property. Writing for the panel, Judge Harry Pregerson said the government failed to show that the search was “spatially and temporally incident to the arrest.” “Here, Agent Walla’s search of Camou’s cell phone was not roughly contemporaneous with Camou’s arrest and, therefore, was not incident to arrest,” Pregerson wrote. “First, one hour and twenty minutes passed between Camou’s arrest and Agent Walla’s search of the cell phone.” There were also at least seven “intervening acts” between Camou’s arrest and the search, the court found. Among other events, Camou was handcuffed and moved to an office near the checkpoint, his phone was removed from his truck, and he invoked his right to remain silent. Pregerson noted that the delay in Camou’s case was longer than the 30- to 45-minute delays in two other circuit cases in which similar searches were “deemed not sufficiently contemporaneous with arrest.” The government also failed to show that a warrantless search of Camou’s cellphone was necessary to prevent the “imminent” loss of data, the panel found, while calling Agent Walla’s initial search “overbroad.” “The search in this case went beyond contacts and call logs to include a search of hundreds of photographs and videos stored on the phone’s internal memory,” Pregerson wrote. “Thus, Agent Walla exceeded the scope of any possible exigency by extending the search beyond the call logs to examine the phone’s photographs and videos.”